GUEST ARTICLE: THE INTERSECTION OF IMMIGRATION AND EMPLOYMENT LAW

By Stanley Mailman and Stephen Yale-Loehr*

As the number of noncitizens working in the United States reaches an historic high, labor and immigration issues often intertwine. This article concerns one area that has received little attention until recently: whether promising to get a visa or green card for an employee or filing a visa petition on behalf of a foreign national creates an enforceable employment contract.

Overview

The general rule is that an employee without a definite term of employment is an employee at will and may be discharged without reason. When employers file a visa petition on behalf of a foreign national employee or potential employee with the Immigration and Naturalization Service (INS), however, they must specify the length of time they want the person to work for them. The issue is whether such language converts an at-will relationship into a contract that has a definite term, thereby giving the foreign national enforceable contract rights. All but one of the cases discussed below hold that employers’ statements made in a visa petition or general claims to obtain a green card or visa do not create an enforceable contract. The most recent case, decided just a few weeks ago, presents a factual variation on the general theme.

Case Examples

For example, in Van Heerden v. Total Petroleum, Inc., 942 F. Supp. 468 (D. Colo. 1996), the employer, Total Petroleum, Inc. (TPI), was an affiliate of a South African company. TPI filed an L-1 intracompany transferee visa petition with the INS to transfer Reuben van Heerden to its U.S. headquarters in Denver. The visa petition stated that TPI intended to employ Mr. van Heerden for three years. A year after Mr. van Heerden started working for TPI, it terminated him as part of a corporate reorganization. Mr. van Heerden sued, claiming that he had either an express or implied three-year contract of employment with TPI. The court rejected this claim, holding that TPI’s "representations to the INS did not constitute an offer of employment for a term of years." Id. at 473. The court also rejected van Heerden’s promissory estoppel claim, holding that "a promise too vague to constitute an offer of employment under a theory of implied contract is also too vague to create . . . a reasonable expectation of reliance under a theory of promissory estoppel." Id. at 474.

In Coxall v. First Bank System, Inc., 1993 Minn. App. LEXIS 900 (Minn. Ct. App. Sept. 7, 1993), Colin Coxall sued his former employer for wrongful discharge. The bank originally hired Mr. Coxall on a nonimmigrant visa, and then successfully petitioned the INS to grant him a green card. After the company downsized, however, the bank fired Mr. Coxall. Coxall claimed that the bank’s sponsorship of his green card petition meant that it promised to give him permanent employment. The court disagreed. The court noted that INA § 101(a)(31), 8 U.S.C. § 1101(a)(31), defines "permanent" for immigration purposes to mean "a relationship of continuing or lasting nature, as distinguished from temporary." The court found that the bank’s application for permanent resident status on behalf of Mr. Coxall was merely designed to conform to the immigration statute, not Minnesota employment law. The court acknowledged, however, that the question was a close one. Id.

In Geva v. Leo Burnett Co., Inc., 931 F.2d 1220 (7th Cir. 1991), the employer submitted a visa application to the INS on behalf of a prospective employee who had already quit his previous job. The employer stated in the visa petition that it intended to employ Mr. Geva for three years. The Seventh Circuit held that the statement did not by itself constitute a promise on which the prospective employee could justifiably rely as an offer for a term of years. Id. at 1224.

In Mortensen v. Magnetti Marelli U.S.A. Inc., 470 S.E.2d 354 (N.C. Ct. App. 1996), the employer offered Finn Mortensen a project manager position in 1988. The offer was contingent upon Mortensen obtaining a visa. The employer assured Mr. Mortensen that it would be "very easy" for him to get a green card to work permanently in the United States. Based on those assurances, Mr. Mortensen quit his job in Canada and moved his family to North Carolina. He worked for three years for Magnetti Marelli as a part-time consultant. Although a permanent visa was obtained for Mr. Mortensen in October 1992, the employer told him that he would not be hired as a full-time employee until January 1993. The employer later changed its mind, however, and fired him.

Mr. Mortensen sued, claiming that his at-will status was converted into an enforceable obligation because he provided additional consideration for the contract, in that he relinquished his legal rights as a resident of Canada, resigned from his former job, and relocated to North Carolina. The court disagreed, stating that the "terms of the employment agreement do not expressly state, or imply, that the employment was to be permanent or that the plaintiff could be discharged only for cause." Id. at 356.

In Francis v. Gaylord Container Corp., 837 F. Supp. 858 (S.D. Ohio 1992), Gaylord hired Mr. Francis, a U.K. national, to manage a corrugated cardboard manufacturing plant in Ohio. As part of the negotiations Gaylord assured Mr. Francis that it would assist him in obtaining a green card. In fact, Gaylord paid for Mr. Francis’ immigration attorney. Before the application was approved, however, Gaylord closed the plant and fired Mr. Francis. Mr. Francis sued, alleging, among other things, breach of an employment contract. The trial court granted summary judgment for the employer. The court held on the breach of contract claim that "[s]tatements made by Defendant concerning Plaintiff’s alien status are not promises of continued employment, nor can they be construed as such." Id. at 861. The Sixth Circuit affirmed, finding no facts or circumstances, including the green card promises, that demonstrated explicit or implicit limits on the grounds for which Mr. Francis could be discharged. 1993 U.S. App. LEXIS 27731 (6th Cir. Oct. 22, 1993).

Mak v. Artglo Sign Company, Inc., 1994 Ohio App. LEXIS 4754 (Ohio Ct. App. Oct. 20, 1994), presented a complicated fact pattern that may have influenced the court’s decision. Artglo hired David Mak in 1976 as an accountant while he was in F-1 practical training status. Before that status expired, the company filed an H-1 petition to continue his employment for the company for one year, until September 1978. The INS approved the petition. In June 1978, Mr. Mak left the United States to attend his brother’s wedding in Hong Kong. For reasons unclear from the decision, the U.S. consulate in Hong Kong required Artglo to post a $5,000 bond before the consulate would issue Mr. Mak a visa to return to the United States. When Artglo was unwilling to pay the bond directly, Mak prevailed upon his father to lend him the $5,000, which he wired to Artglo. Artglo then executed the bond. Based on the bond, Mak returned to the United States. Upon his return, however, he found a letter from Artglo firing him.

Mr. Mak sued for breach of contract. The trial court found that a one-year employment contract existed and that Artglo breached that contract. The appeals court affirmed, based on the following evidence:

It was the understanding of both parties that the plaintiff was granted an extension of his working alien permit for one year upon the condition that he continued his employment with the defendant Artglo, and that the plaintiff was not to work for any other employer during the granted extension period of his visa without permission of the immigration office. Also, when contacted by the plaintiff in Hong Kong, Artglo, through its president, . . . informed the plaintiff that the company would "do everything" in its power to get the plaintiff back to his job. Although the plaintiff had to advance the cash to assist Artglo in providing the necessary bond, the cashier’s check to do so was that of Artglo. Based upon all of the evidence, the trial court could reasonably find that there was a promise of employment for one year, that there had been reliance by the plaintiff that such job was to exist for one year, and still existed even though he was out of the country at the time, and due to such reliance there had been certain damages sustained by the plaintiff.

Id.

A new decision presents a variation on the theme of this article. In Ling v. Doane College, 1999 Neb. App. LEXIS 210 (Neb. Ct. App. July 27, 1999), Doane College employed Eric Ling, a U.K. citizen, as an assistant professor of sociology for several years on temporary visas. Wanting to employ Professor Ling permanently, the college began the labor certification process, a prerequisite to a green card in most employment situations. In the academic context, labor certification requires a university to conduct a competitive recruitment and selection process and establish that the foreign national is more qualified than any U.S. candidates who apply for the job. 20 C.F.R. § 656.21a(a)(1)(iii). Unfortunately for Professor Ling, the college found a more qualified U.S. applicant, hired him, and told Ling that he would not be reappointed.

Under the college’s faculty personnel handbook, Ling was entitled to one year’s notice of pending nonappointment. The college only gave Ling five months’ notice. Ling sued for breach of contract. The college defended its failure to give Ling the required notice on the ground of supervening impossibility. The college claimed that it followed the required Labor Department regulations, that its failure to reappoint Ling was a natural result of that process because it found a more qualified U.S. applicant, and that therefore it was excused from its contractual obligations.

The court agreed. The court found that the college’s ability to provide Ling with one year’s notice rested in part on "an objective, outside factor: the qualities of the individuals who responded to Doane College’s federally mandated posting of the job application." Id. This supervening event excused the college from its contractual commitment.

Conclusion

The cases generally hold that employers’ promises to obtain a visa or green card for an employee or statements in a visa petition promising to employ a foreign national for a set period of time do not convert an employment at will relationship into an enforceable contract for an fixed term. The one exception, Mak v. Artglo, can be distinguished by the numerous other facts present in that case. Nevertheless, careful employers can avoid potential problems by having new employees sign waiver forms when they start work. The forms, which are common practice in many large companies, state the employee’s understanding that his or her employment and compensation may be terminated with or without cause and with or without notice at any time, at the option of the company or the employee. Some waiver forms also specify that no company employee has authority to agree to employ the worker for a specific period of time. For H-1B nonimmigrant workers, the employer must also agree to pay the reasonable costs of returning the worker to his or her home country if the worker gets fired. 8 C.F.R. § 214.2(h)(4)(iii)(E). Such language clearly separates the immigration process from employment law issues.

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* Stanley Mailman and Stephen Yale-Loehr are co-authors of the Immigration Law and Procedure treatise. Mr. Mailman is counsel to Satterlee Stephens Burke & Burke in New York City, an adjunct professor at New York Law School, and a former president of the American Immigration Lawyers Association. He can be reached at smailman@compuserve.com.

Mr. Yale-Loehr is of counsel at True, Walsh & Miller (http://www.twmlaw.com) in Ithaca, New York, and teaches immigration law at Cornell Law School. He can be reached at syl@twmlaw.com.

This article originally appeared in the August 23, 1999 issue of the New York Law Journal. Copyright © 1999 the New York Law Publishing Company. The authors thank the Journal for permission to reprint this article.

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